Landmark Green Chemistry Regulations Take Effect in California

California’s groundbreaking Safer Consumer Product regulations took effect October 1, 2013. The long-in-the-making green chemistry regulations establish a process for the California Department of Toxic Substances Control (DTSC) to identify consumer products containing chemicals of concern that warrant the evaluation of safer alternatives by manufacturers, retailers and others, and, if deemed necessary by DTSC, the imposition of product or chemical restrictions and conditions. Ultimately, the regulations could change the way new consumer products are designed.

After many delays, proposals and revisions, on August 28, 2013, the regulations were approved by the California Office of Administrative Law (OAL) and filed with the California Secretary of State. The regulations come over two years after the statutory deadline of January 2011 set by California Assembly Bill 1879, enacted in 2008. Still, some were surprised by the timing, since a few provisions were disapproved by OAL and are pending revisions by DTSC, the comment period for which closed September 9. In particular, to gain approval for the last few provisions, DTSC has proposed clarifying its regulations so that any documents submitted to DTSC under the regulations must be in English and provided in electronic format; that DTSC must review trade secret claims so it does not withhold information from the public based upon an invalid claim; and that DTSC must notify a submitting party 30 days prior to rejecting information as trade secret so that the party may seek judicial intervention to prevent disclosure.

The newly effective Safer Consumer Product regulations apply to products sold, offered for sale, distributed, supplied or manufactured in California. Given the size of California’s economy, in many respects the regulations will essentially be a de facto national law, bypassing the stalled reform of federal chemical laws. Indeed, the state has fought against recent efforts to update the Toxic Substances Control Act in a manner that could preempt California regulations, such as its Safer Consumer Product regulations.

The new California regulations provide for a four-step process to identify safer consumer product alternatives:

Establishment of a list of Candidate Chemicals by DTSC, which initially includes approximately 1,200 chemicals, based upon the incorporation of 23 existing lists from around the globe.

Designation of Priority Product/Candidate Chemicals combinations by DTSC for which an assessment of safer alternatives must be conducted.

Performance of Alternative Assessments for designated Priority Products by manufacturers or other responsible entities, including importers, assemblers and retailers.

Imposition of conditions by DTSC, referred to as “Regulatory Responses,” for Priority Products or selected alternatives to protect public health and/or the environment, such as requiring notice to consumers, establishing end-of-life product stewardship programs, restricting the use of chemicals in a product or the use of a product, or banning sales of a product in California.